Citation Nr: 18143241 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-27 976 DATE: October 18, 2018 ORDER Entitlement to service connection for sleep apnea is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sleep apnea. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1969 to April 1972. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in May 2015. 1. Entitlement to service connection for sleep apnea The Veteran contends that he has current sleep apnea that was incurred in service or is secondary to service-connected posttraumatic stress disorder (PTSD). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). An increase in severity of a nonservice-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected condition, will be service connected. 38 C.F.R. § 3.310 (b). The question for the Board is whether the Veteran has a current disability that began during service, is at least as likely as not related to an in-service injury, event, or disease, or is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected disability. Service treatment records are negative for sleep apnea. VA medical records reflect that the Veteran underwent a polysomnogram in July 2015 to determine whether he had sleep apnea. The diagnostic impression was that the overnight polysomnogram demonstrated that the Veteran has no primary sleep pathology. A July 2015 sleep medicine consult reflects that his sleep study did not demonstrate sleep apnea or excessive movement in sleep. Subsequent medical records reflect treatment for insomnia. A September 2015 neurology consult reflects that the Veteran had been referred for insomnia symptoms after a negative polysomnography study, and had no current diagnosis of sleep apnea. The Board finds that the polysomnogram is highly probative evidence weighing against the claim, and based on a review of all of the evidence of record, concludes that the Veteran does not have a current diagnosis of sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). While the Veteran is competent to state that he has sleep difficulties, snoring, and fatigue, and believes he has a current diagnosis of sleep apnea, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of a current disability, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In short, the medical evidence of record does not establish a current sleep apnea disability. In the absence of a current disability, service connection cannot be established. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine does not apply. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. The Veteran's representative has asserted that this claim should be remanded for a VA examination to determine whether the Veteran's claimed sleep apnea is related to service-connected PTSD. As discussed above, competent and credible evidence (including a July 2015 polysomnogram) shows that the Veteran does not have current sleep apnea. Accordingly, in the absence of competent evidence of a current disability that may possibly be related to service, a VA medical examination is not warranted at this time. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam); Walker v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination.) S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. L. Wasser, Counsel